Enemy at the gates: New Mexico plots criminal charges against feds in land fight

Gov’t, locals want to fend off a new Bundy-type clash

New Mexico ranchers are plenty mad over the U.S. Forest Service’s refusal to open a gate blocking their cattle from reaching water, but all sides say they are working hard to avoid an armed showdown reminiscent of Nevada’s Bundy ranch skirmish any time soon.

But that doesn’t mean a resolution will be easy or that the pressure on the local officials at the center of the clash is any less.

And still standing are the metal fences and locked gates along the banks of the Agua Chiquita, put up by the Forest Service to keep local cattle out. The federal government says the fences are merely replacing long-standing barbed-wire enclosures protecting a vital wetland habitat.

Otero County officials say they’re exploring possible criminal and civil sanctions against federal agencies after failing to reach an agreement with federal stakeholders. The ranching community is also reaching out to Congress to step in on behalf of cattle owners.

“It’s time for a congressional inquiry into this and probably a committee hearing somewhere in the West to deal with this, because it’s not just here. It’s Utah. It’s Nevada. It’s what’s going on in Texas,” said Albuquerque attorney Blair Dunn, who’s representing Otero County in the matter.

The Otero County Commissioners released a statement late last week saying they were “frustrated and disappointed by the inability of the USFS to work cooperatively in any meaningful way” after federal officials refused to budge at a meeting called by the U.S. attorney.

“It was very frustrating for the sheriff and the county commissioners to go all that way, have that meeting in good faith, and nobody in that room from the federal government ever had any intention of compromising,” said Mr. Dunn.

The U.S. Attorney’s Office in New Mexico released a statement following Friday’s meeting confirming that the sides remain deadlocked.

“No resolution was reached during the meeting, and the U.S. Attorney’s Office continues to monitor the situation in Otero County primarily to ensure that public safety is preserved,” according to the statement.

Fourteen federal officials and law enforcement officers attended the meeting, said Mr. Dunn, but they insisted that they have no authority to remove the pipe fencing, which is tall enough to block cattle from reaching the watering hole but short enough to allow elk and deer to leap over.

Cal Joyner, Forest Service regional forester, said the fence was included as part of the region’s National Environmental Policy Act (NEPA) planning process in 2004, which determined that 23 acres out of 29,000 needed to be cordoned off to protect the riparian area.

Mr. Joyner said the cattle have had access to water outside the fence but that four years of drought in southern New Mexico have dried up many water sources. He also said that the process was conducted in public and included input from the Medeiros family, which owns the cattle.

“Up until last summer, in the fourth year of a record drought, we have never had problems with water outside of that one fence,” said Mr. Joyner.

Opening the fence may sound like an easy fix, but Mr. Joyner said it would also require the Forest Service to reopen the NEPA planning process and change the rules governing the riparian area, which is being protected as habitat for at-risk species, such as the New Mexico meadow jumping mouse.

“Once you make that kind of decision, to undo it you have to go through a similar process to say, ‘No, we’re choosing to again allocate these scarce resources back to livestock grazing,’” said Mr. Joyner. “That’s why we can’t just open the fence. There’s a process that’s gone through that’s public. We used public funds from the state of New Mexico to actually create the fence. It’s been a highly public process that’s gotten us to this place.”

Open for years

Ranchers point out that the fence has been opened for years every spring to allow the cattle access to the creek, which is also used by elk, deer and feral wild hogs.

Federal officials “kept saying, ‘Well, we have a record of decision under NEPA, and we can’t go back and open the gate. Which is crazy, because for the last 15 years they’ve been opening the gate and allowing access,” said Mr. Dunn. “When we said, ‘Who has the authority to open the gate?’ no answer.”

So far nobody has admitted to opening the fence in the past. “At least in the last 31/2 years when James [Duran] has been the ranger, they have not been opening the fence,” said Mr. Joyner. “No one in the room knew of who opened the fence and under what authority.”

The area is being protected in part for species such as the New Mexico meadow jumping mouse, which is expected to be listed as endangered in June.

Otero County Sheriff Benny House is investigating whether to bring charges against federal agencies for violations that could include criminal trespass. There are also concerns that the agencies may have used leftover oil pipes to construct the fence, which would violate New Mexico environmental law.

Caren Cowan, executive director of the New Mexico Cattle Growers’ Association, said the feud over the fence is just the latest example of the ongoing struggle between those who make their living off the land and the federal government, which owns 42 percent of the land within the state’s borders.

“This whole federal lands’ abuse — and there’s no other term for it — has been something that has been building for years,” said Ms. Cowan. “Basically, we feel like here in the West, and particularly in New Mexico, we’re almost under siege with the federal government trying to drive us off the land.”

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In accordance with Title 17 U.S.C. Section 107, any copyrighted work in this message is distributed under fair use without profit or payment for non-profit research and educational purposes only. [Ref. http://www.law.cornell.edu/uscode/17/107.shtml]